4 Greene

Volume 4 — Greene's Iowa Reports

191 opinions

4 Greene 1Dubuque Co. v. Dubuque & Pacific Railroad (1853)
A county has the constitutional right to aid in building a railroad within its limits. The proceedings under which the citizens of Dubuque county voted two hundred thousand dollars to aid in constructing the Dubuque and Pacific railroad through that county, were regular, and authorized by law. Section 114 of the Code applicable to railroads.
4 Greene 17Milburn v. Marlow (1853)
Whore the defendant in an attachment suit files a delivery bond to the satisfaction of the sheriff, for live stock, he is entitled to the possession of such stock without first paying for the keeping of the same while under attachment.
4 Greene 21Reiley v. Ward (1853)
 Appeal from Muscatine District Court.
4 Greene 23Stanchfield v. Palmer (1853)
 Appeal from Soott District Court.
4 Greene 26Russell v. Russell (1853)
In Equity. Appeal from, Dubuque District Court.
4 Greene 32Cole v. Swan (1853)
The pleadings should all he in, and the issue made up, before the jury is sworn. The officer having a jury in charge should not speak to them while deliberating upon their verdict, except to ask them if they have agreed.
4 Greene 34Roberts v. McMahan (1853)
In Equity. Appeal from Des Moines District Court.
4 Greene 36Hawley v. Warde (1853)
 Appeal from Muscatine District Court.
4 Greene 40Jones v. Benton (1853)
The compensation of a school fund commissioner, under the Code, § 1174, was allowed by the clerk, sheriff and attorney, at five hundred dollars per annum, but the superintendent of public instruction refused to approve the allowance for more than lour hundred dolíais per annum : held that the superintendent was authorised thus to limit and define his approval of the allowance.
4 Greene 42Nichols v. Burlington & Louisa County Plank Road Co. (1853)
 Appeal from Pcs Moines Pistriet Court.
4 Greene 45Armstrong v. Pierson (1853)
In an action of right, the plaintiff cannot recover unless he shows that tlic grantor, in the deed to him had title. In an action of right or ejectment, the plaintiff must rely on the strength of his own title.
4 Greene 47Creal v. City of Keokuk (1853)
 Appeal from Lee District Court.
4 Greene 54Wihelm v. Mertz (1853)
 Error to Des Movnes District Court.
4 Greene 56Frederick v. Remking (1853)
 Appeal from Bolle District Court.
4 Greene 59Barker v. Brink (1853)
 Appeal from Jones District Oourt.
4 Greene 60Twiford v. Alamakee County (1853)
A county seat may be changed by an authorized vote of the people, even from a location declared by law to be permanent, although land had been deeded to the county to secure such permanent location. Where a party was induced to deed land to a county in considex-ation of having the county seat permaxxently located on or near his land, and if the county seat is subsequently removed by vote of the people, the county should I’e-eonvey the land to the party.
4 Greene 63Johnson v. Patten (1853)
Where a party sells rails and receives payment, but fails to furnish or deliver them, he is liable to the vender for their value. A book of accounts admissible as conducing to prove a payment for roils that were not furnished.
4 Greene 65Johnson v. State (1853)
The testimony of one accomplice not sufficient to corroborate the testimony of another accomplice. A prisoner should not he found guilty on the testimony of two accomplices unless confirmed hy some other testimony.
4 Greene 66Whipple v. Abbott (1853)
 Appeal from Louisa District Court.
4 Greene 68Bell v. Hall (1853)
 Appeal from Lee District Court.
4 Greene 72Stone v. McMahan (1853)
 Appeal from Polk District Gourt.
4 Greene 73Hall v. State (1853)
 Error to Jefferson District Court.
4 Greene 75Stewart v. Marshall (1853)
 Appeal from Lee District Court.
4 Greene 76Foss v. Isett (1853)
 Appeal from Muscatine District Court.
4 Greene 78Hillis v. Ryan (1853)
Where the court decided that there were two hundred dollars in the hands of H., as school fund commissioner, belonging to R., and where the order of the court was presented to H., with a demand of payment, a refusal on his part would justify a mandamus, to compel performance. Every failing demurrant has a right to plead over, upon such terms as the court may direct. To refuse such right unconditionally is erroneous.
4 Greene 79Johnson County v. Porter (1853)
A witness is entitled to fees from the county for his attendance in a criminal cause on a preliminary examination before a justice of the peace.
4 Greene 80East v. Parks (1853)
All process issued fry the clerk of any district court must hear test in the name of sub-clerk : hut the signature may he regarded as a part of the test, and where referred to in the test as “witness my handy” <Stc., it is sufficient without repeating the name in the body of the test
4 Greene 82Gould v. Woodward (1853)
 Appeal from Muscatine District Court.
4 Greene 84Stockton v. City of Burlington (1853)
Where the bill of exceptions does not purport to give all the evidence, it will be presumed that the facts as found were sufficiently established by other proof. Where a notice of gax-tiishment was served within ninety days, and the answer, filed at the next term of court, having been mislaid and a new answer filed : .held that the new answer should be regarded as a continua- • tion of the first; held, also, that as the amount due from the garnishee was for personal services rendered within ninety days next preceding the notice-it was exempt from execution aixd attachment.
4 Greene 86Stein v. Keeler (1853)
Where fraud, is set up in defense of a note which was- indorsed to plaintiff before due, the answer should charge the holder with notice of the alleged fraud, or that he was a party thereto. Eraud is no defense to a note which came into the possession of a bona fide holder, without notice,.for value, and before due. Section three of revised statutes, p. 453, is applicable only to instrument1» assigned after due..
4 Greene 89McIntire v. Skinner (1853)
M. held a claim on one-quarter of a quarter section of land, and contracted with S. for one-quai-ter of a one hundred and sixty acre land warrant, with the understanding that S. should enter the quarter section of land in his own name, and deed to M. his portion. After entering the land, S. recognized the arrangement in two or three transactions, but finally, when M. tendered to him the price stipulated for one-fourth of the warrant, S. refused to make the deed: held that the circumstances and equities removed the case from the statute of fraud, and created a trust which should be enforced against S. An oral trust may be established by parole testimony, if a voluntary acknowlment can be proved. A resulting trust may be established by parole proof.
4 Greene 92Davis v. Moffitt (1853)
This court will not reverse upon questions of fact, unless the testimony of record clearly shows error, All legal presumptions will favor the decision below. Where a plea in abatement put in issue plaintiff’s right to the office of supervisor, it was incumbent upon him to show that he held the office by right.
4 Greene 94Davis County v. Horn (1853)
 Error to Davis District Court.
4 Greene 95Lewis v. Miller (1853)
An appeal from the district to the supreme court is taken by service of a notice in writing, on the adverse party and the clerk. This must be done, under the Code, within one year from the date of judgment.
4 Greene 97Johnson v. Triggs (1853)
Appeal from, Keokuk District Court.
4 Greene 104Winchester v. Ayres (1853)
 Appeal from Polk District Court.
4 Greene 106Nightingale v. Barney (1853)
Where it appeared that a note belonged to a voluntary association of individuals not incorporated, and that the plaintiff had no interest therein, the court should find for defendant. A mere moral obligation is not a sufficient consideration to support a note between the parties to such obligation.
4 Greene 108Murray v. Catlett (1853)
Where a mortgagor had sold his equity of redemption, and all right to the property subject to the mortgage, he need not be made a party to the bill of foreclosure. A mortgage was given to secure notes signed by M. as principal and H. as security, and H. having paid the pote last due, took an. assignment of the mortgage : held, that the payment of the note by the surety did not discharge the mortgage lien, and that H. as such surety, was entitled to the benefit of that security, to reimburse him for the payment he had made.
4 Greene 112Scott v. Ward (1853)
 Appeal from Muscatine District Court.
4 Greene 113Queen v. Griffith (1853)
 Appeal from Polk District Court.
4 Greene 115Merchand & Co. v. Cook (1853)
A defendant called upon as a witness, by the opposite party, may, under the Code, testify to foots affecting himself, but not to facts calculated to transfer the liability from himself to the separate property of his co-defendants. In an action for a mechanics’ lien on a running account for materials furnished during the progress of the improvement, in the absence of proof to the contrary, the date of the last item in the account will be regarded as “ the time payment should have been made,” in order to bring the account within the one year limited by the Code.
4 Greene 117Sample v. Davis (1853)
 Appeal from, Jefferson District Oottrt.
4 Greene 119Coffin v. Kemp (1853)
In Equity. Appeal from Wapello District Court.
4 Greene 120Petty v. Durall (1853)
 Appeal from Monroe District Court.
4 Greene 121Winchester v. Cox (1853)
In a suit upon an attachment bond.^he petition should aver that the attachment plaintiff had no sufficient cause for believing the facts sworn to in the affidavit. It is not sufficient to aver that the facts were not true. Kinney, J., contra.
4 Greene 123Lemonds v. French (1853)
 Appeal from Marion District Court.
4 Greene 125Dutell v. State (1853)
 Error to Mahaska District Court.
4 Greene 126Goddard v. Beebe (1853)
 Appeal from Muscatine District Court.
4 Greene 133Bogy v. Rhodes (1853)
 Appeal from, Dufaique District Court.
4 Greene 135Brobst v. Thompson (1853)
 Appeal from Marion District Court.
4 Greene 137Reddan v. State (1853)
Where the first indictment was mislaid, a second indictment was found for the same offense, and on motion quashed, and thereupon the first indictment was found : held, that the second indictment did not supersede the first. An indictment for an assault with intent to inflict a bodily injury, should ayer in substance that no considerable provocation appeared, or that the circumstances of the assault showed an abandoned and malignant heart. An indictment should charge the facts and circumstances constituting the offense in substantial compliance with the law defining the crime.
4 Greene 140Orton v. State (1853)
 Error to Lee District Court.
4 Greene 143Bruce v. Luck (1853)
 Appeal from Dubuque District Court.
4 Greene 144Karrick v. Pratt's Executors (1853)
 Appeal from Dubuque District Court.
4 Greene 146Smith v. Carroll (1853)
Rails, laid up in a fence inclosing a field, or a portion of a field, are a part of the freehold, although the fence is’not staked-with stakes sunk into the ground.
4 Greene 148Whitmore v. Bowman (1853)
In an action for damages to personal property, the articles should he so specified as to inform the defendant, of the extent of the action, and proof to he adduced against him ; and hence when the petition claimed for damages to “ furniture, '&e.,” it was error to admit proof for injuries done to coffee, sugar and apples. A witness should he required to state facts, and not his opinion, .except on questions of science, skill or trade, in relation to which he is an expert. Upon questions, wherein the jurors are as well qualified to form an opinion as the witness, the opinion of the latter should not be received in evidence. As a general rule, witnesses are to state such facts as are relevant to the issue, and from those facts the jury are to draw their own conclusions. A public ferryman is regarded at law as a common carrier, and is hound to provide suitable boats, landings, fastenings and fixtures.
4 Greene 152Hudson v. Plank Road Co. (1853)
Where the petition seeks to recover an amount subscribed to the capital stock of a plank road company, a copy of the subscription paper should be annexed to the petition.
4 Greene 153Crew v. McClung (1853)
Where a demurrer to a petition is only applicable to the attachment proceeding, an erroneous ruling, in relation to such demurrer, cannot affect the judgment on the merits. If the requisite facts for an attachment are clearly stated in the petition, it is not necessary to follow the exact language of the Code. When the answer distinctly traverses the material averments in a petition, so far as they relate to the attachment, that issue of fact, if desired by defendant, should be regularly tried and determined. It is error to render judgment upon a debt not due, without the consent of the debtor, although property may be attached to secure such a debt.
4 Greene 155Gillam v. Huber (1853)
 Appeal from Lee District Court.
4 Greene 157Dawson v. Jewett (1853)
An attachmnnt should not be granted, unless ashed for in plaintiff’s petition. A note made payable to bearer, should be transferable by indorsement, or else sued in the name of the payee, or his legal representative.
4 Greene 159Luman v. Kerr's Administrator (1853)
 Appeal from Lee District Court,
4 Greene 162O'Ferrall v. Simplot (1853)
In aji action' at law. by a'widow, for dower, a material omission in. a certificate of acknowledgement, cannot be supplied by parole proof. The form of acknowledgement used in 1840, not to be regarded as a construction of the Statute, approved January 4, 1840, under authority of Jackton v. ffumaer, 2 Cow., 552. A certificate of acknowledgement, by a feme covert, under the Statute of 1840, which does not state that she was made acquainted with the contents of the deed, nor that she relinquished her dower, is fatally defective, and will not pass her estate.
4 Greene 168Davis v. O'Ferrall (1853)
Under the statute of 1839, as at common law, the widow is entitled, during her natural life, to one third part of all the lands and tenements in which her husband was seized, at any time during coverture. The Code provides that the widow’s dower shall be one third of her husband’s real estate, in fee simple. Courts favor dower, but this rule should not be carried so far as to impair vested rights, by giving a statute a retrospective operation. Every statute which takes away, or impairs vested rights, acquired under previous laws, must be considered retrospective, and opposed to sound principles of jurisprudence. The Code does not operate retrospectively in reference to dower, consequently when the husband conveyed his title to land, without the wife’s relinquishment, before the Code took effect, and died subsequently, the widow 'is entitled to dower, for life only, according to the law in fores at the time of sale.
4 Greene 172Our House, No. 2 v. State (1853)
An indictment against a house, as a dram shop and nuisance, when a lien is not sought upon the property, need not state the owner’s name, nor aver his knowledge of the unlawful traffic. Where an offense, charged is continuous, as a prohibited traffic, carried on from ■day to day, it may be laid with a continuando. An indictment is good which charges the facts constituting the offense substantially in'the language of the Code. Those provisions of the Code which prohibit the sale of intoxicating liquors by the glass, and which authorize proceedings' in ran, against “ dram, shops,” are not unconstitutional, and should be enforced.
4 Greene 177Morrison v. Langworthy (1853)
 Appeal from Dubuque District Court.
4 Greene 181Jones v. Alley (1853)
A written contract cannot be materially- changed by parole agreement. The time stipulated ior payment in a written contract may be attended by-parole agreement, but it cannot by parole be made essential, when it i» not so stipulated in writing. Under a contract for land, the entire consideration money should be paid before an unconditional decree for specific performance is rendered.
4 Greene 183Rowland v. Rowland (1853)
Where the husband died under the Rev. Stat., and the widow gave birth to a posthumous son after the Code took effect; held that the widow is entitled to dower under the Rev. Stat., and also on the death of the son, may inherit one-third of his estate in fee.
4 Greene 185Reunecker v. Scott (1853)
 Appeal from Dubuque District Court.
4 Greene 187Mainer v. Reynolds (1853)
A note is not negotiable by delivery only, unless made payable to bearer. Where a note, not negotiable by delivery, is sued in the name of the indorser, a copy of the indorsement should be annexed to the petition. In an action by the indorser of a note where the defendant pleads failure of consideration, and tbe court instructs the jury that they must be satisfied that the plaintiff had notice of the failure before the note was assigned, it will be persumed that the note was indorsed before due, unless the record shows to the contrary. '
4 Greene 189Smith v. State (1853)
The mere fact that the indictment was mislaid or stolen after 'the trial, and could not he sent up with the writ of error, is not sufficient ground for .reversing the judgment. The right to challenge jurors under the Code is unconditional, and any ruling of the court calculated to restrict that right; or to malee the defendants right dependent upon the exercise of the game right by the State is erroneous. A witness whose name is not indorsed on the indictment, if objected to, should not be permitted to testify in behalf of the State.
4 Greene 191Miller v. Galland (1854)
The date of a note given for services on a steamboat, is not conclraive that the services were rendered at or before suchjdate, so as to give priority of lien for such services, over a seizure and levy made at the same date of the note. A general judgment on a note for services rendered to a steamboat, cannot have the effect of a preferred claim under the act of 1847, nnless the judgment specify and fix the lien. Under the act of 1838, authorizing attachments against boats and vessels, the jurisdiction of the district court does not depend upon'the strict regularity of the officer’s returns, when the proceedings in other respect» ware fully authorized,
4 Greene 196Frink & Co. v. Taylor's Administratrix (1854)
T. commenced suit against F. <fc Co. for damages sustained to his person by the upsetting of a stage coach; after suit was commenced, T. died, and his .wife was substituted as administratrix of his estate, and filed a supplemental bill. On the trial, the court instructed the jury that plaintiff could recover damages for the injury sustained by her on account of the death of T.; held that this instruction was erroneous; that she could not recover for such injury as administratrix, but that she might do so by a proceeding in her own name and right; that as administratrix she could only recover such damages as her husband might have recovered. An amended petition should appertain to the same rights of the party plaintiff as the original petition, and should not set up other rights effecting other parties.
4 Greene 201Shaffer v. Bolander (1854)
 Appeal from Van Burén Disfoict Court.
4 Greene 204Ball v. Humphrey (1854)
Proceedings in reference to a county road were taken by appeal to the district court, where appellees moved to dismiss the appeal on. the ground that application for damages were not made within the time required by law, and because the district court has ho jurisdiction over the question of damages; held, that as the county judge had acted upon the question of damages without objection, the appeal should not be dismissed. The location of a road, where it does affect the rights and interests of individuals as distinguished from the public, is not subject of appeal to, and cannot be reveiwed by a jury in the district court, but when it involves a question of damages to the land of an individual, that question may be taken to the district court, and all 'questions affecting the public only, should be referred back to the county court. Costs accruing in the district court, should be determined by that court, and should not be referred to the county court.
4 Greene 207Young v. Gammel (1854)
 Appeal from Jefferson District Cou/rt.
4 Greene 212Harlan v. Berry (1854)
■An unsatisfied judgment against one of the payors of a joint and several note, is no bar to an action against the other. Where the appearance of the note is the only evidence of an alteration in the date, or where such alteration does not appear to be material, the validity g! the note should not be affected.
4 Greene 214Wood v. Sands (1854)
In an action against the mortgagee to recover the balance due on the mortgage and note, after applying the proceeds from the sale of the mortgaged premises; it was held, that as the mortgagee had not indorsed the note, there was no cause of action against him.
4 Greene 216Hunt v. Hunt (1854)
 Appeal from Des Moines District Court.
4 Greene 224Claussen v. Lafrenz (1854)
 Appeal from Scott District Goiurt.
4 Greene 229Franklin Insurance v. McCrea (1854)
 Appeal from Lee District Court.
4 Greene 231Cheuvete v. Mason (1854)
The separate answers of several defendants being under oath, and denying all tbe material allegations of tbe bill, are sufficient to defeat the bill in' the absence of any reliable proof to the contrary. Fraud will not he presumed ; it must be proved. Where it appeared that the contract for a working interest in a “lead ” was in the wife’s separate name, paidfor with her own money, and all proceeds received and. arrangement conducted in her own name and right; held, ■ that the circumstances establish her separate ownership of the “lead,” and that parties having full knowledge of all the circumstances, could not hold said working interest or the proceeds thereof to satisfy a debt against the husband. The right of a married woman to acquire, possess and control property in her own right and'for her own benefit, and that it cannot be taken to pay the husband’s debts unless left under his control without notice of (he real ownership, are fully recognized by the Code. Although the defendant answered to the bill, still if a demurrer would’ hold against it, a court will not, in generalgrant the relief sought. ’’
4 Greene 240Neally v. Wilhelm (1854)
Where E. contracted with W. to sell him a cow, and W. directed the cow to be delivered at his slaughter house, under the stipulation that he wotdd pay as much for her as if he had previously seen her, and where N. delivered the cow as directed, and W. not finding her as good as he expected, directed her to be turned loose, whereby she was lost; held, as the sale was absolute and the price only conditional, that W. was liable to N. for the value of the cow; held, also, that if the sale had been conditional, he would • still bp liable as bailee for gross negligence.
4 Greene 242Coburn v. Mahaska County (1854)
 Appeal from Mahaska District Court.
4 Greene 245Humphreys v. Hoyt (1854)
A motion for a new trial is addressed to the sound discretion of the court, and should be refused unless a strong meritorious case is shown. Where, by consent, a jury is waived and the facts are submitted to the finding of the court, on a motion for a new trial, the case is to be considered the same as if tried by a jury. Where, by tho Code, a party is required to answer under oath, such answer is to be considered evidence in the case, of equal weight with that of a disinterested witness. A new trial will be granted when it appears that the merits of the case have not been justly tried and that injustice has been done.
4 Greene 252Roop v. Seaton (1854)
Where a cause of action on a written instrument had accrued, but was not barred at the time the Code took effect, the time allowed for the commencement of the action would be five years from July 1,1851. The non-joinder of one of two joint payors of a promissory note, cannot be set up as a bar to the action in the answer, but would be good cause for demurrer. A petition seeking to recover against one as on a several promise, cannot be supported by a joint note against two which contains no several promise.
4 Greene 254Gillis v. Matthews (1854)
 Appeal from Lee District Court.
4 Greene 255Pitkins v. Boyd (1854)
 Appeal from Jackson District Cov/rt.
4 Greene 263Brewington v. Endersby (1854)
Heading the notice to tlie adverse party, of fclio time and place of lairing depositions, is sufficient service, where no copy is demanded.
4 Greene 264Shuck v. Vanderventer (1854)
In an action on an attachment bond, the remarks of the defendant at the time he procured the writ, not admissible to show his motives.
4 Greene 266Smith v. Smith (1854)
The district court has jurisdiction in all cases of divorce and alimony, in the comity wherein the plaintiff resides, even in cases where it appears that the cause of action arose outside of the county or state. Section 2497 of the Code, authorizing the service of notice through the post office, when the parties reside at different places, between which there is regular communication by mail, should be strictly observed, and courts should carefully guard against any abuse of its provisions. A notice addressed to Mrs. R. L. Smith, to a post office in a city where she - had been always known and addressed as Mrs. Asahel L. Smith, is not sufficient, when it was known by the party sending- the notice, that she was absent from said city. In order to give the court jurisdiction in a case of divorce, the plaintiff’s residence in the county must be be bona fide, arid not merely for the purpose of obtaining- a divorce under the laws of Iowa. The Code, in reference to divorce, should be strictly enforced, and the requirements fully observed.
4 Greene 273Ford v. Jefferson County (1854)
 Appeal from Jefferson District Court.
4 Greene 278State v. Lighton (1854)
 Appeal from Wapello District Cohort.
4 Greene 282Smith v. Snodgrass (1854)
Where s justice of the peace cent tip to the district court an amended transcript, on discovering an omission in the one first sent up, and within the time required for the returning of the transcript in appeal cases, it is error in the district court to reject stich amended transcript.
4 Greene 283Reynolds v. May (1854)
 Appeal from Lee District Court.
4 Greene 287Williams v. Gartrell (1854)
 Appeal from Dubuque District Gourt.
4 Greene 290Crick v. McClintic (1854)
Where the defendan' took exceptions to a deposition, which had-been taken, by plaintiff, but before the question was decided waived hia exception and offered to read the deposition in his own behalf; held, that the court erred, in rejecting the deposition. .A deposition, properly taken, may be used on the trial in the same manner as the testimony of a witness.
4 Greene 291Keitler v. State (1854)
 Error to Lee District Cou/rt.
4 Greene 294Roop v. Clark (1854)
 Appeal from, MahasJca District Court.
4 Greene 296Reeves & Co. v. Jones (1854)
 Appeal from Lee District Court-
4 Greene 297Drake v. Achison (1854)
Any defect, or want of notice before a justice of the peace, is waived by appearance, and by going to trial in the district court.
4 Greene 299Viele v. Blanchard (1854)
 Appeal from Muscatine District Court.
4 Greene 300Bradley v. Jefferson County (1854)
 Appeal from, Jefferson District Court.
4 Greene 302Furgison v. State (1854)
 Appeal from, Johnson District Court.
4 Greene 304Boon v. Orr (1854)
In an action of trespass before a justice of tbe peace, a petition was filed, and during tbe trial was mislaid, but was subsequently found, and on appeal to the district court was sent up with the transcript; held that the petition need not be copied into the docket, and that as the petition and docket together, Bhowed a cause of action, the case should not be dismissed. Rails, laid into a fence, are a part of the fx-eehold, and belong to the owner of the soil.
4 Greene 307Martindale v. Kendrick (1854)
Where the husband and wife, and their only child were drowned by the same casualty, and where the child, surviving its parents for a few minutes, inherited their estate ; held, under the Rev. Stat. recognizing the civil law as to degrees of kindred, that the maternal grand-father of the child would inherit the estate in preference to the paternal aunt.
4 Greene 309Sinnamon v. Melbourn (1854)
' Where a receipt was given by plaintiff, after tho suit was commenced, but before the trial, on obtaining payment of defendant “ in full of all debts, dues and demands,” it was error, on the trial, to reject the receipt when offered in evidence. Where tho defendant offered to prove by a competent witness, “ how much he had paid the plaintiff,” the testimony should not have been rejected. The Code, in directing oral pleadings to be reduced to writing by the justice of the peace, is directory, and a party should not be prejudiced if he neglects that duty. "On a trial before a justice of the peace, a general denial of indebtedness will be presumed, if nothing appears to the contrary.
4 Greene 311Whitcomb v. Holloway (1854)
The neglect of a justice to make his returns to the district court, at least five days before the next term, is not good ground for dismissing the appeal.
4 Greene 312Dean v. Morris (1854)
Purchasers at judicial sales must take notice of the titles for which they bid. A purchaser cannot avoid his bid at a sheriff’® sale, by showing a defective title in the judgment debtor. Erand not sufficiently charged, by averring that the coroner and attorney knew that the title of the land sold on execution by the coroner was defective.
4 Greene 314Porter v. Wilson (1854)
Where a petition, founded upon an attachment bond, avers that “ the attachment was wrongfully and wilfully sued out by the defendant, when in truth and in fact the plaintiff was not indebted to them in any amount whatever,” it is sufficient without any averment as to belief. In an action upon an attachment bond, where the plaintiff seeks to recover on the ground that he was not indebted to the attachment plaintiff, the petition need not give the substance of the affidavit.
4 Greene 317Heichew v. Hamilton (1854)
In an action upon a contract, in which the defendant sold land, as a tavern stand, to the plaintiff, under the express stipulation, as an inducement to the purchaser, that the defendant should discontinue tavern keeping at his residence near the landsold; hold, that such contract was violated hy occasionally keeping travelers for pay; that the defendant could not be justified in entertaining any part of the traveling public for compensation, and that the plaintiff need not prove special damages. Where there has been a previous recovery on the same contract, the plaintiff may sot up such previousrecovery, by way of estoppel, to show that certain stipulations in the contract, as conditions precedent on his part, had been complied with, and the defendant was estopped from denying all but the subsequent breach and damage.
4 Greene 320Abbott v. Whipple (1854)
 Appeal from Lov/isa District Court.
4 Greene 322Thompson v. Campbell (1854)
Where proceedings come before the district court by change of venue, with no other record or papers than the petition and order for the change of venue, the suit may be dismissed.
4 Greene 324Pinkney v. Pinkney (1854)
 Appeal from, Henry District Court.
4 Greene 328State v. Bissell (1854)
p submitting to the votéis of a county a proposition to have the county issue bonds for stock in a railroad company, the form of the vote is sufficiently explicit when it reads : “ For the Lyons Railroad,” or “Against the Lyons Railroad.” A proclamation directing a vote of the people for or against issuing bonds to a railroad company, under the stipulation that they should be issued “ only in the event of said railroad being constructed and running centrally through the county; ” held, that the vote being favorable to the railroad, the county judge had a right to issue the bonds on being made satisfied that said road will be built centrally through the county. Greene, J. contra.
4 Greene 336Trustees of Miners' Bank v. Thomas (1854)
Tiib triiRtaes of the Miner’s Bank of Dubuque, appointed under the act repealing the charter of that Bank, were not authorized to employ an attorney, to be paid from the assets of the Bank, to carrry on a quo warranto suit against the officers of the Bank. The trustees were only authorized to settle the affairs of the Bank, and could not be justified in paying from its assets, an attorney for doing that which had already been done by the legisislatnre in repealing its charter.
4 Greene 340Hutchinson v. Sangster (1854)
An answer, under the Code, should specifically deny; or admitting, should set forth that which would justify and avoid every material allegation in the petition. Ip an action for fake imprisonment, the defendant may justify hy averring, in his answer, that he was acting as city marshal, and that the plaintiff was so disturbing a worshiping congregation, as make his arrest necessary; and that he was only confined until he became sufficiently sober, or until ho could be taken before a magistrate for examination. The power to detain an offender in custody, for a reasonable length of time, is inherent to the duties of a peace officer. Where judgment was not rendered by default, and the question of damages is submitted to tbe jury, the defendant’s right to address the jury is not disturbed by the Code, § 1831. Section 1831 of the Code should be strictly construed. The constitutionality of this section questioned.
4 Greene 344Sprote v. Marshall (1854)
 Appeal from Fan Burén District Court.
4 Greene 345Hodges v. Brett (1854)
A defendant may appear specially to object to a defective notice ; and the defect is not cured by such appearance. A notice should designate the hour of appearance, and is therefore defective it it names the hour as “ 11 o’clock, M.” Where jurisdiction depends upon the notice, there should be a strict observance of the statute. . '
4 Greene 346Milbourn v. Fouts (1854)
 Appeal from Van Burén District Court.
4 Greene 348Lee County v. Nelson (1854)
All the powers and duties designated by the Code, as devolving upon the county judge, may be exercised by the county court; and all decisions v made by the “ county judge” are in legal’efiect the decisions of the “county court;” and from all such decisions an appeal is allowed , as provided by § § 131 to 135 inclusive.
4 Greene 351Baade v. Orten (1854)
 Appeal from Dubuque District Court.
4 Greene 352Barber v. Swan (1854)
A writ of attachment should show prima facie, a compliance with the Code and if materially defective, it cannot be amended, and may be quashed on motion.
4 Greene 354Dailey v. Reynolds (1854)
In an action of slander, words arc per so actionable, where they charge a woman “of being a bad character," and “guilty of fornication;" and where such words were spoken falsely and maliciously of a feme sole, she is entitled to recover without averring or proving special damages.
4 Greene 357Deforest v. Swan (1854)
Where the defendant, in an action of trespaps, answered that he took the goods, as sheriff, by virtue of a writ of attachment, a copy of which was annexed to his answer; and where such writ appeared to Lave been materially defective; held, that a demurrer to the answer should bo sustained.
4 Greene 358Davis v. O'Ferrall (1854)
 Appeal from Dubuque District Court.
4 Greene 367Jefferson County v. Ford (1854)
 Appeal from, Jefferson District Court.
4 Greene 372Trask v. Key (1854)
 Appeal from Louisa District Court.
4 Greene 373Wallace v. City of Muscatine (1854)
 Appeal from Muscatine District Court.
4 Greene 376Hall v. McMahan (1854)
 Appeal from Potawatamie District Court.
4 Greene 377Graves v. Steel (1854)
 Appeal from Potawatamie District Court.
4 Greene 379Burton v. Hill (1854)
In a case commenced before a justice of tbo peace, fhc defendant answered that, “ he bad paid, and over-paid, plaintiff for all items of accountbelli, ' that this should be considered a denial of plaintiff's demand ; and not as’n new affirmative allegation, to be taken an true, if not denied. In actions commenced before a justice of the peace, strict formality and regularity in pleadings will not be required where the provisions of the Codo are substantially observed.
4 Greene 381Dixon v. State (1854)
 Error to Marion District Court.
4 Greene 382Frink & Co. v. Whicher (1854)
Appeal from Scott District Court.
4 Greene 383Partridge v. Corkery (1854)
 Appeal from Jackson District Court\
4 Greene 386Warfield v. Woodward (1854)
 Appeal from, Muscatine District Court.
4 Greene 389Logan v. Tibbott (1854)
 Appeal from Marion District Court.
4 Greene 393Burton v. Emerson, Shields & Co. (1854)
 Appeal from Dubuque District Court.
4 Greene 398Emerson & Shields v. Tomlinson (1854)
A petition for rehearing should not ho favored by the supreme court, unless applied for at the time the judgment was rendered. After rights aro vested, under a decision of the supreme court, no discretionary power can he exercised by that court to change or set aside such decision.
4 Greene 401King v. Hampton (1854)
 Appeal from Linn District Court.
4 Greene 403Cooper v. Frederick (1854)
Where a petition seeks a specific performance, and the settlement of a partnership business, it should set forth the amount of capital invested by each partner; the method of carrying on the business, and the leading factsand conditions upon which the partnership was formed, and under which plaintiff seeks to recover. A decree should not give more or greater relief than is claimed in the peti-tion. Two of three joint tenants cannot agree upon a division of their land that will be binding upon the third. A settlement of accounts between two partners cannot be binding upon the third partner, without his consent. In making a final settlement between partners, and a division of the lands, the court should examine into all the circumstances, rights and equities of the respective partners, and arrange the settlement and division accordingly-
4 Greene 406Beebe v. Brown (1854)
In an action upon a special contract, evidence of a contract, materially different Irom that upon which suit is brought, may ba excluded.
4 Greene 409Sears v. Tubbs (1854)
On appeal from a justice of tho peace, it is error to render judgment against the defendant, unless the transcript or some paper on filo iu the case, shows tho amount and nature of plaintiff's demand. Á petition is not necessary before a justice of the peace ; but if the suit ia upon a note or account, it should be filed with the justice. The transcript from a justice of tho peace, should contain a brief statement of tho plaintiff's demand.
4 Greene 410Bennett v. Nye (1854)
 Appeal-from Muscatine District Court.
4 Greene 411Clare v. Clare (1854)
Where the February-term of the court was commenced under an act in force at. the time; and where a new ncfrlnok effect on the third day of the term, changing the time of holding the court; hold, that a decree rendered at that term of court, after the new act took effect, is valid.
4 Greene 413Lawson v. Campbell & Brother (1854)
The court will not presume a state of facts, which would make the following charge to the jury erroneous : “ That if the enclosures of the defendant were not protected by a good and sufficient fence, sufeh as would protect his crops from stock not breachy, that he could not he allowed his damages.” Every fair presumption should he in favor of the decision below, and therefore facts should not he presumed that would indicate error. In an action to recover the value of an elk killed by defendant, and where he setup in defense that the elk was trespassing upon his enclosure, and had introduced evidence to show the value of the elk; held, that the plaintiff should be permitted to give rebutting evidence in reference to the trespass and the value of the elk.
4 Greene 415Campbell v. Thompson (1854)
After granting n change of venue to another county, tho district court has no longer juriwliciton over the case, aud is not authorized to render judgment against the defendant.
4 Greene 416Keeney v. Chilis (1854)
Possession of a bond negotiable under the Code, is prima fade evidence of ownership; and if such possession is alledged to be fraudulent, the fací can only be established by evidence. After a deposition is returned to cotirl, the objection cannot for the first lime be raised, that the questions were leading.
4 Greene 417Ellsworth v. Henshall (1854)
 ■ Appeal from Fotuv'atomi» Dintrict, Court.
4 Greene 420Wright v. LeClaire (1854)
1:i au action for the specific performance of the conditions of a title bond where the tacts set. forth in th* petition would take the case, out of the statute of limitations, that statute ennnot, be successfully pleaded, unless such averments in the petition are denied by an accompanying answer ; and in sue)) case, the issue of facts presented by the denials in the answer, should be tried. Where a title bond stipulated not only that the land should be pa:d for, but also thatthooblie.ee should pay the'• costs and charges ” of the conveyance; and where the. price of the land had been paid, such “costs and charges” should also be proffered and a deed demanded before a right of action accrued. A tjtle. bond for land cannot be barred under the fourth section of the act of 1813, for the limitation of actions.
4 Greene 425Dean v. Hall (1854)
 Appeal from Poweshiek District Gowrt.
4 Greene 426Webster v. Raver (1854)
la an action upon an attachment bond, it is error in the court to reiuee instructions asked in reference to damages, when such instructions were in strict accordance with the Code. Where a correct instruction is asked and refused, it is calculated to mislead the jury, although the substance of the instruction is given in a different form.
4 Greene 428Baker v. Chambles (1854)
{School district» are corporations, and have the power to make contracts, die., in relation to school houses; hence a note given by “ the undersigned directors of school district, No." <fcc., and signed by three persons ; held, that they were only liable as directors, and that it was error to admit the note as evidence of an individual liability against the makers. * Where the name of the principal and the relation of the agent he stated in a note or contract, and the agent is authorized to make such note or contract, the principal alone is bound, unless the intention is clearly expressed to bind the agent personally. A party to a contract should be personally-bound, unless his agency'is disclosed ; hut in deciding whether the apparent agent or his principal should be bound, the presumption is that such agent intended to bind his principal.
4 Greene 431Atwater v. Woodward (1854)
 Appeal from, Marshall District Court.
4 Greene 432Nuckols v. Mitchell (1854)
"Wtit-re it appears that the ondina] notice and attachment w<nv iü-suod at the same time, it will he considered 1hai the nitachment waw «uvl out at the commencement of the Aiiit. and if is error to dismiss the attach mint in mich a ease, on the awnined ground 1.h«1 it was* nmed out Iwdmv suit was commenced.
4 Greene 433Steamboat Globe v. Kurtz (1854)
The Des Moines River is a navigable stream and a public highway, consequently a steamboat may lawfully navigate the same ; and although a ferry may be legally established upon that river, it must be so conducted as to avoid obstructing its navigation. The right to navigate the river is paramount to a ferry franchise, and therefore a steamboat is not required to wait for a ferryman to lower his cable, so as to run any risk or suffer any damage from the delay. A ferry cable extending across a navigable stream should be so managed as ' not to be an obstruction to navigation, and so as to cause neither inconvenience or dam age tó boats.
4 Greene 437Houston v. State (1854)
Where it appeared that E. Kamberling was a witness before the grand jury, although the name indorsed on the indictment was “ E. Kimberling, ” he was properly admitted as a witness on the trial. On an indictment for marking and defacing a school house, the court instructed the jury that, “ The state had proved all that was necessary in reference to the school district; " held, that this was charging the jury on the facts, and therefore erroneous.
4 Greene 439Ulmer v. Hiatt (1854)
 Appeal from Muscatine District Court.
4 Greene 440Bosworth v. Farrenholtz (1854)
The remedy for forcible entry or detention of real property, not allowable by the Code, where the defendant sets up a paramount title under the third division of § 2362 ; nor when a question of title is involved.
4 Greene 441Clark v. Blackwell (1854)
A special appeaiance should only be allowed to urge jurisdictional objections.
4 Greene 443Moss v. Humphrey (1854)
 Appeal from Musoatvne District Court.
4 Greene 445Danemuller v. Burton (1854)
 Appeal from Dubuque District Court.
4 Greene 448Lemp v. Hastings (1854)
 Appeal from Muscatine District Gourt.
4 Greene 452Parker v. Pierce (1854)
 Appeal from Polk District Court.
4 Greene 453Gano v. Gilruth (1854)
A court of equity has jurisdiction in a proceeding for dower where an account ia prayed. In Iowa, where dower attaches to legal and equitable interests in land, there would seem to be good reason why courts of law and equity should exercise concurrent jurisdiction in dower cases. The common law rule that a demurrer reaches back to the first defective pleading, is not applicable to pleadings under the Code. The fact that the defendant was a bona fide innocent purchaser, without notice, is not allowable as a defense to an action of dower.
4 Greene 455Coriell v. Ham (1854)
A sheriff sold several lota, on execution, to 0., the brother and agent of the execution defendant, who failed to pay the purchase money; the sheriff thereupon “ proclaimed the postponement of the sale ” from the 17th to the 24th of August, at which time the property was sold to H.; held, that as the adjournment was proclaimed by the sberiff, as the defendant’s agent was present and had notice of the adjournment, and a's it was occasioned by him, the sale was not void in consequence oi such postponement; held, also, that although H. was present at the first sale, and had notice of the adjournment, it does not follow that he could be charged with notice of irregularities. The execution law in force at the time of 8 contract, enters intp and becomes a part of that contract, so far as its obligations and liabilities are concerned; but such portions of an execution law, as are merely remedial, do not affect such obligations, and may be changed or modified by subsequent legislation. The substantial rights of parties, under a contract, cannot be changed or impaired by subsequent laws; but the method of enforcing those rights may be changed. Where the judgment was rendered in 1842, and the execution issued and the sale took place in 1844; held, that the sheriff’s deed delivered to the purchaser on the day of sale, did not invalidate the sale, nor impair the execution defendant’s right to redeem the land under the law of the contract It is the policy of the law to protect judicial sales,
4 Greene 461Rees v. Baker (1854)
 Appeal from, Jasper District Court.
4 Greene 465Lot Two v. Swetland (1854)
 App 'al from Cedar District Court.
4 Greene 468Rowan v. Lamb (1854)
1. Where the bill of evcptionn does not purport to give all the evidence in the cu'-m, it will be presumed that the e\ idcncc adduced on the trial was sufficient to justify the decision. 2. Where a bill of exceptions describes in detail, the exhibitsand title papers introducid, and states, “Being all the evidence offered hy the plaintiff to sustain tho issue on his part," it must, be concluded that no other evidence was offered in behalf of plaintiff. 3. Tho affidavits of a newspaper publisher, that a notice of a mortgage sale was duly made, cannot be objected to in tho supreme court, unless the objection was first made in the court below. 4. Tille bona file derived under a deed of trust, where the trustees wore vested with the power to sell, and also with the legal title, will not bo disturbed by those irregularities, in reference to the powers of the trustees, which might affect tho validity of tho sale, where the power to sell is not coupled with the title. 5. Where title is derived from trustees, who had the legal title as well as the power to sell, such title can only be divested by direct proceeding in chancery, and can only be overcome by "a paramount antecedent title. 6. The majority opinion in Tiffany v. Glover, 3 G. Greene, 387, overruled, and the. pri 'ripies laid down in the d Leonti ng opinion, in that case, adopted. 7. An attachment is auxiliary and incident to the proceedings over which the district court is invested with general jurisdiction ; hence, the attachment may be defective and tho principal ease not so. 8. Wliere a writ of attachment commanded the sheriff to levy, “ Upon the defendant's property in Leo county, Iowa,” and returned on the back of the writ, “ Served the witbm attachment by attaching;,” tire., certain property described in tho return, it will be presumed that “ The property attached was the property ol the debtor.” 9. A court will not intend facts inconsistent with tho returns of a writ in order to divest, rights acquired under it; but will rather presume a levy to have been duly made, in order to support those rights. An officer will be presumed to have dono his duty, as commanded, till tho contrary appears. * 10. A court of inferior or limited jurisdiction musfsbow in its records, or in its judgments, that it has jurisdiction over tho subject matter and the parties. If it in any way appear that such a court has jurisdiction, it will be inferred that, its proceedings vve.ro regular. 11. In an attachment, it is the levy that gives tho court jurisdiction over the property, and not the return on the writ. 12. Presimij.ilo.i3 ave allowed v hen the facts lo be presumed aro consistent with tli» duty, trust or power authorized, and lend to subserve, the purposes of justice ; but where the act would be unauthorized by the trust or office, or contrary to the duty of the party assuming the power, no such presumption can be admitted. 13. Lvry i ¡(al ji;ri.,dieiio;,.il fact must be apparent; and while we cannot merely piornmc the crcMcnc.1 <f such a fact, ve cannot presume ag.iiunt it, evento divest an iiif-rior court of jurisdiction; so in attachment proceedings, the court will not presume the jurisdictional fact of a levy; but where that fact is eslablii.hett by the officer's return, or otherwise, a court may call in the aid of j resumption to support a mere detail or incident connected with the levy, to 'allow that the officer obeyed, the directions of the law in making the levy. 14. An attachment proceeding does not curtail oi limit the jurisdiction of the court, bffiuu nffiffili it ma/ bepending; and if before a court of general jurisdiction, like the di.triei court, the ra.ua general intendments apply in. regard to the exercise of official duties, as apply to any oilier case of general jurisdiction ; and whore there appears to have been a writ founded upon the requisite affidavit, and vhero the officer appears to have eoi"^ lied v.ilh the nsaidato of that writ by making the requisite levy, that 1 vy given the court jurisdiction over the property attached. 15. "Where, under attachment, a legal levy has in fact been made, a mero omission in the returns to slate the particulars in reference to the levy, or the ownership of the properly attached, will not impair it, nor affect the jurisdiction of the court over the property.
4 Greene 480Baker v. Chittucks (1854)
 Appeal from Scott District Court.
4 Greene 483Munson v. State (1854)
 Error to Jasper Disi/riet Gov/rt.
4 Greene 485Brainard v. Holsaple (1854)
 Appeal from Jachson District Cov/rt.
4 Greene 488Bumford v. Purcell (1854)
B., as principal, and P., as security, signed a note to I)., for town lots purchased by B. Before the notes matured, B. proposed that he would relinquish the lots to P., if P. would pay the note, and save B-harmless. B. soon after left the state. After judgment was obtained against P. on the note, he paid the same; and subsequently, in a suit against B. for the amount, B. proposed to prove by parole, the agreement under which P, was to pay the note, and B. relinquish to him the lots; held, that parole proof was not admissible, and that such an agreement, unless in writing, is within the statute of fraud, and void. A parole promise to pay the debt of another, without consideration, is void by the statute of frauds, oven if that promise was made by a party who signed the note as security or indorser. All contracts for the sale of land, or for any interest in or concerning them, should be in writing; hence an agreement by B. to relinquish a purchase of lots to P., upon condition that P. would pay B.’s note to D., which was signed by P., as security, should be in writing.
4 Greene 493Buford & Co. v. Funk (1854)
 Appeal from, Muscatine District Court.
4 Greene 500Fouts v. State (1854)
 Error to Warren District Cowrt.
4 Greene 510Cole v. Poster (1854)
A dem arre)' should specify the precise ground of objection, and show in what respect the pleading is claimed to be legally insufficient. The Code directs execution sales tobe made between nine o’clock in the forenoon and four o’clock in the afternoon ; but where a notice of sale fixed the time of sale as between the hours of two and five o'clock in the afternoon ; held, that a valid sale might be made under such notice, as it will n.ot be presumed that the officer sold the property after the time directed by the Code. It will be presumed that an officer has done his duty, till the contrary appears.
4 Greene 512Hunt v. Bennett (1854)
An answer to a petition in replevin, after denying the averments of the petition, alleged in reference to the property described in the petition, “ that he, the said defendant, is rightfully entitled to the property, and to the possession thereof; ” held, that this allegation is not new matter, and amounts to nothing more than a cumulative responsive denial of plaintiff's rights, and need not be specifically denied, under § } 1741 and 1742 of the Code. Where an objection to pleadings was not first raised in the court below, it should not be entertained by the supreme court. In an action of replevin, where the jury return a verdict, “We the jury find a verdict for the defendant of fifty dollars,’1 it is not error in the court to refuse a judgment ordering the property to be restored to the defendant. Such a verdict is not inconsistent with plaintiffs's right to the property.
4 Greene 516Carson v. Harris (1854)
 Appeal from Dubuque District Court.
4 Greene 520Brewer's Estate v. Crow (1854)
 Appeal from Des Moines District Court.
4 Greene 524Rynear v. Neilin (1854)
 Appeal from Johnson District Court.
4 Greene 526Zumhoff v. State (1854)
Those provisions of the Code which prohibit the sale of intoxicating liquors, by the glass, are not unconstitutional. In an indictment against an individual for retailing intoxicating liquors by the dram, it is not necessary, to designate the premises upon which the alleged sale was made. It is sufficier t if the offense is charged to have bee» committed in the appropriate county. It is desirable, though not essential, that the town or city be designated. Where an indictment is in substantial compliance with J 2916 of the Code, it cannot he deemed invalid. An indictment for retailing intoxicating liquors charged the defendant with being “a retailer of intoxicating liquors by the glass or drain, to be thero and then drank, in and about the premises of him, the said William Zumhoff, by consumers and purchasers thereof; and did then and there on divers different and separate timeB, retail to divers persons, to the jury unknown, twenty glasses or drams of rum, brandy, gin, whiskey and wine, and other intoxicating liquors," «fee.; held, that the offense is charged sufficiently specific, and with more descriptive and explanatory matter than ia necessary nnder the Code, When the offense is charged as defined in the first division of $ 925 of the Code, it includes within its meaning that which is described after the word “prohibited” in the last division of this section. Where an indictment charges that the defendant had retailed twenty glasses or drams of intoxicating liquors to divers persons, at divers times, it does not thereby present more than one offense, as limited by $ 2917 of the Code.
4 Greene 532McEwen v. Taylor (1854)
 Appeal from Keokuk Disi/riot Oowt.
4 Greene 534Taylor v. Brobst (1854)
Constructive service, by publication, is not good, unless ordered by the court, after the return of the notice, “ not found," to the appearance term of the court. Where the defendant did not receive personal service, nor appear, in'addition to the constructive service by publication, it should appear of record that a copy of the petition -was directed to him through the post office, as required by the Code, $ 1826.-
4 Greene 536Morgan v. McLaren (1854)
 Appeal from Des Moines District Court.
4 Greene 539Hall v. Hunter (1854)
 Appeal from Johnson District Court.
4 Greene 544Sullivan v. Finn (1854)
Where part of a debt was paid under the announcement that it should be received in full satisfaction, and where the creditor silently acquiesced in the proposition, hy taking the money; held, that in the absence of consideration, such implied promise to take part in payment of the whole debt, was not a legal satisfaction. In an action by a landlord to recover a balance on rents, the tenant cannot object to instructions given by the court in support of the landlord’s light to the premises. Where an irrelevant instruction was given, which could not prejudice appellant, the judgment will not be reversed. After a trial upon the merits, without objection to the pleadings, the judgment will not be reversed, because a replication was not filed. It will bo presumed that the replication waB waived.
4 Greene 548Ogilvie v. Washburn (1854)
An action was córame need against three joint and several makers of a promisr sory note. An attachment was sued out against one of them, on the alleged ground that he had disposed of his property with intent to defraud his creditors ; held, that the court was justified in setting aside the attach' mentagainstoneof the defendant’s only, where there was no avermentthst the other defendants were insolvent, or in failing circumstances. An attachment may be justified against one of the makers of a joint and several promissory note, if the petition for the attachment shows that the other debtors were insolvent, or non-residents of the state, or that they had absconded, so that the ordinary process could not be served upon them. The object of the attachment law is to secure creditors against the efforts of debtors to defraud them, hence an attachment should be granted only where that object is to be attained. The facts, necessary to justify an attachment, should exist as to all the debtors Ej^of a joint and several obligation ; or if the facts do not apply to all, it should appear that the remaining debtors are insolvent, before there can be occasion for the process. An amendment to pleadings may be refused, if the proposed amendment cannot accomplish the object intended.
4 Greene 551Wilson v. Stripe (1854)
'Where property exempt from execulion is taken on attachment, the fact may be shown on motion to dissolve the attachment, or on motion to have the property released. But if the party fails to avail himself of such motion, it does not follow that his right to the property is forfeited, or that he may not recover in an action of replevin. .The action of replevin is authorized by the Code, to recover the possession of personal property taken on legal process, if it was exempt from seizure by such process. A judgment, until reversed, is conclusive of every issue that was or should have been tried under the pleadings, but it is not conclusive of facts tlia^ were not in issue, nor admitted by the pleadings, and therefore, if connected with an order to sejl property under attachment, it is not conclusive that the property was not exempt from execution. An order to sell property, made at the time and in connection with a judgment, is independent of the judgment, and may be revoked or defeated by a replevin of the property without impairing the judgment. A judgment with an order to sell property under attachment, is not a bar to an aeticm of ro-oL,,.*., frtr U'e property, on the th"t U wee from execution.
4 Greene 555Frink & Co. v. Coe (1854)
In an action for injury, sustained by the overturning of a stage coach, the declaration of the plaintiff, made at the time of the injury, are admissible in evidence, as a part of the res gestae. If a declaration, made at the time the act was done, is calculated to explain the character, nature or quality of the facts constituting the act and its effects, so far as to unfold and harmonise them as parts of the same transaction, then such declaration may be regarded as part of the res gestae, and should go to the jury with the principal facts in the case. Stage coach proprietors, who carry passengers for compensention, are responsible for all accidents and injuries happening to passengers, which might have been prevented by human care and foresight; they are consequently bound to furnish good and strong coaches and harness, gentle and well broke horses, skillful and prudent drivers, and the smallest degree of negligence in these particulars will render such proprietors liable for any injury to passengers. Where a passenger has been injured in consequence of the gross negligence of a stage proprietor, by the employment of a known drunken driver, the injured party may be entitled to exemplary damages. If a stage proprietor or carrier is guilty of gross negligence, it amounts to that kind of gross misconduct which will justify a juiy in giving exemplary damages, even where an intent or design to do the injury does not appear. A tender admits the liability or indebtedness to the amount of the sum tendered.
4 Greene 561Zeigler v. Jennison (1854)
Wlifere notices for an appeal were ivitlidrawn, after they were1 left with the clerk and the attorney of the adverse party, the case remains’as if no such notices had been sewed. Where the papers in a case show that the appeal was not taken within one year from the time judgment was rendered, this court will’ not set aside án order dismissing such appeal, unless the fact is cleaily established that the; notices were served, and an appeal perfected within the time limited by.the ■ Code.
4 Greene 563Bridgman v. Wilcut (1854)
The district court possesses general original jurisdiction against which nothing will he presnmed. The district court is authorized to entertain a direct proceeding to set a.>ido an unauthorised sale made by the sheriff. Where an objection to jurisdiction was not raised in the court below, it will not be entertained in the supreme court. By appealing and pleading, the defendant admits the jurisdiction of the court. When a defendant abides by his demurrer to the petition, the court will be justified in rendering a judgment agreeable to the prayer of the petition, oQ overruling the demurrer. The supreme court will not consider new causes of demurrer, which werenot presented to the court below. Under a contract made in January, 1851, the homestead of the debtor is exempt from execution, by virtue of the act of 1849, to exempt a homestead from forced sale. The homestead law, in force at the date of a contract, enters into and becomes a part of the contract, and the right acquired to have the homestead exempt from forced sale, is not impaired by a repeal of the law.
4 Greene 567Myers v. Sunderland (1854)
 Appeal from Wapello District Court.